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Court of AppealPartially AllowedCivil Appeal No. 42 of 1994· [1998] KECA 164 (KLR)

KENNETH STANLEY NJINDO MATIBA vs THE HONOURABLE ATTORNEY GENERAL [1998] KECA 164 (KLR)

Court of Appeal
13 November 1998
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
1,031 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that no court order can stand if a party wasn't heard before it was made — Matiba's banned book was stayed.

What this practically means

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Executive summary

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The appellant, Kenneth Stanley Njindo Matiba, authored and published the book 'Kenya Return to Reason' in early 1993. On 14th January 1994 the Minister of State, acting under section 52 of the Penal Code, prohibited the publication through Legal Notice No. 2 of 1994. The appellant applied under Order 53 of the Civil Procedure Rules and the Law Reform Act for leave to apply for certiorari to quash the prohibition, and for the grant of leave to operate as a stay. On 24th January 1994 Pall, J granted leave but directed that the order would not operate as a stay. The appellant appealed, contending that the Judge refused the stay without affording counsel an opportunity to make representations. The Court of Appeal examined the record of proceedings, which contained the order but no record of submissions by counsel, and inferred that the order was made without affording counsel an opportunity to address the court. It held that the rule that no man shall be condemned without a fair opportunity to be heard is a cardinal principle of natural justice, and that an order flowing from such a fundamental breach cannot be sustained. The court found it unnecessary to consider the other grounds of appeal, which it observed appeared persuasive. The appeal was allowed, the Minister's prohibition order was stayed pending the hearing and disposal of the certiorari application in the High Court, and the appellant was awarded the costs of the appeal. The court also noted the Attorney-General's repeated non-attendance despite due service. This judgment binds subordinate courts on the requirement of a hearing before refusal of a stay in judicial review proceedings.

Key legal issues

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01

Whether the refusal of a stay without hearing counsel breached the rules of natural justice

Holding

Yes. The record showed the Judge made the order refusing a stay without affording counsel an opportunity to address him on that prayer, breaching the cardinal rule of natural justice.

Reasoning

The court examined the record of proceedings before Pall, J and observed that no submissions by Mr. Kariuki appeared on it. It inferred that the order was made in counsel's presence but without affording him an opportunity to address the court. Since the rule of audi alteram partem is a cardinal principle of natural justice, its breach could not be sustained, and the order refusing a stay fell with it.

p. 2
02

Whether the prohibition order of the Minister of State should be stayed pending the certiorari application

Holding

Yes. The court allowed the appeal and stayed the Minister's prohibition order pending the hearing and disposal of the certiorari application in the High Court.

Reasoning

Having found a fundamental breach of natural justice in the refusal of the stay, the court held it could not sustain any order flowing from that breach. It therefore granted the relief sought on appeal, staying the Legal Notice No. 2 of 1994 prohibition of the book pending determination of the judicial review application. Other grounds of appeal were left undecided.

p. 2

Legal principles established

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  • A judicial officer must afford a party an opportunity to be heard before refusing a prayer for stay; an order made without such opportunity is a fundamental breach of natural justice and cannot stand.
  • An order flowing from a fundamental breach of natural justice cannot be sustained by an appellate court.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The order of the Minister of State made on 14th January, 1994 is stayed pending the hearing and disposal of the application for the Order of Certiorari in the High Court
  3. 3.The appellant is awarded the costs of the appeal

Authorities

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Legislation

  • Penal Codesection 52
  • Constitution of Kenyasection 79
  • Civil Procedure RulesOrder 53 rule 1 (2)
  • Civil Procedure RulesOrder 53
  • Law Reform Act
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Cause No. 60 of 1994
Jurisdiction invoked
Appeal from a ruling of the High Court in a judicial review matter (Order 53 of the Civil Procedure Rules; Law Reform Act, Cap 26)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENNETH STANLEY NJINDO MATIBA vs THE HONOURABLE ATTORNEY GENERAL [1998] KECA 164 (KLR)", Case Analysis (1998). Civil Appeal No. 42 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/164/eng@1998-11-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.